Environmental news update - 26 July
Welcome to the latest edition of our weekly Environment Law news update. As ever, we bring you developments, insights, and analysis in the world of environmental law.
NEWS ROUND UP
Ofwat’s proposed new common framework: Boosting water efficiency and sustainable drainage in new developments
Ofwat have published its Consultation seeking views on changes to its charging rules by way of an introduction of a common framework for environmental incentives to “offer stronger and more standardised environmental incentives to developers to encourage them to build new homes that are more water efficient and with sustainable drainage.” The consultation closes on 10th September 2024.
The consultation aims to introduce a clear and consistent framework for environmental incentives offered by water companies to developers to simplify the process and support a wider uptake of sustainable practices. Currently, many water companies offer discounts on new connection charges for meeting certain standards of water efficiency or sustainable damage. However, these incentives vary widely in terms of standards and processes.
The draft guidance for the Common Framework includes measuring water efficiency by using a fittings approach, encouraging the use of sustainable drainage systems (“SuDS”) in new developments and making changes to the charging rules to make the framework more effective and transparent.
There appears to be several key benefits flowing from the draft Common Framework for both developers and the environment including:
- Consistency and clarity as by standardising the incentives across all water companies, developers will have a clearer understanding of the requirements and benefits making it easier to plan and implement sustainable practices;
- Increased adoption of sustainable practices by encouraging the use of water efficient fittings and SuDS which can lead to more environmentally friendly developments;
- Simplified processes – a common framework can streamline the application and approval processes for developers reducing the administrative burdens and making it more attractive to adopt sustainable measures;
- Promoting water efficiency will lead to environmental benefits. Promoting water efficiency and SuDS can help reduce water consumption and manage surface water runoff contributing to better water resource management and environmental protection;
- Economic incentives – developers can benefit financially from the incentives which can offset some of the costs associated with implementing sustainable practices;
- Support for innovation – the framework can encourage innovation in sustainable building practices and technologies as developers seek to meet the criteria for incentives;
Overall, the framework aims to create a more sustainable and efficient approach to new developments benefitting both the environment and the stakeholders involved. However, to ensure the effectiveness of the environmental incentives key strategies will need to be adopted, by way of for example ensuring there are quantifiable metrics in place that are easy to track and measure, incorporating sustainability goals into long-term performance metrics rather than just short-term bonuses, making incentives accessible to a broad range of stakeholders, including smaller developers and communities that would enhance participation and impact.
In conclusion, Ofwat’s proposed common framework for environmental incentives represents a significant step towards promoting sustainable development practices within the housing sector. By standardising incentives across water companies, the framework aims to provide clarity and consistency, making it easier for developers to adopt water-efficient fittings and SuDS. This not only simplifies the process for developers but also encourages the widespread adoption of environmentally friendly practices.
High Court- First case challenging water neutrality dismissed
A first legal challenge against a planning inspector’s refusal to grant a planning permission for a development on grounds of water neutrality was refused as the High Court disagreed that the inspector took restrictive approach in interpreting Natural England’s advice.
Natural England Guidance was issued in September 2021, requiring all developments within the Sussex North Water Supply Zone (covering a significant part of southern England including the subject Horsham Council area) to demonstrate water neutrality due to the impact that the current abstraction has on the Arun Valley SPA, SAC and Ramsar Site. Developments must not increase the use of water in the supply zone.
The claimants in Ward v Secretary of State for Housing, Communities and Local Government [2024] argued that their water usage prior to the guidance should be exempt them from demonstrating water neutrality. They had moved to the site before the guidance was published and argued in this case that:
- The inspector had been wrong to find that only lawful development was exempt from the requirement to demonstrate water neutrality; and
- Having otherwise found the development to be acceptable in planning terms, he should have placed the appeal in abeyance until a strategic mitigation solution had come forward.
Natural England was consulted and disagreed; confirming the inspector’s decision that only water usage related to lawful development would be exempt. The court concurred.
Deputy High Court Judge rejected the arguments and held:
- The inspector’s conclusion that “otherwise accounted for” was akin to “immune from planning control” was a lawful exercise of his planning judgment as the competent authority.
- The proposal to put the appeal into abeyance had not been articulated with sufficient clarity for the inspector to have addressed in the decision letter. There was no indication as to how long the period of abeyance should be, what should happen if no strategic mitigation materialised, or circumstances otherwise changed during the period of abeyance of how the rationale for placing the appeal into abeyance would be explained to the parties.
A third ground related the possibility of a split permission, which was also rejected as no clear request had been made. The inspector had no obligation to consider a split permission.
The case was dismissed in its entirety.
Oil drilling operation in Lincolnshire Wolds AONB halted after Finch
The High Court has recently quashed the decision to allow an oil drilling operation in the Lincolnshire Wolds Area of Outstanding National Beauty (“AONB”) following a concession from the Secretary of State.
In 2021, Lincolnshire County Council denied Egdon Resources permission for further exploratory drilling and 15 years of oil production in the Lincolnshire Wolds AONB. This decision came after a failed exploratory drilling attempt in 2018. However, in November 2023, Michael Gove, the then Secretary of State for Levelling Up, Housing and Communities, overturned the council’s decision due to energy security grounds. This was done despite acknowledging the development’s impacts on the landscape and the contravention of local planning policy.
Campaign group SOS Biscathorpe argued that the negative environmental impact and the negligible oil output did not justify the project. They highlighted the ecological importance of the Lincolnshire Wolds, home to rare chalk streams and vulnerable species.
In June 2024, the High Court heard the case. However, before a judgment was issued, the Supreme Court ruled on Finch was released, which emphasized that planning permission for fossil fuel projects should only be granted after a thorough assessment of the climate impact, including downstream greenhouse gas emissions.
Following this ruling, Michael Gove and Egdon Resources conceded the Lincolnshire Wolds AONB case.
This case shows the clear and immediate consequences of the ruling on Finch on oil and gas projects. From the release of this landmark ruling, in order for any oil and gas project to succeed, it will require at least a comprehensive climate impact assessment including the consideration of downstream emissions.
Newcastle-under-Lyme Borough Council calls for Public Enquiry over handling of Walleys Quarry
Earlier this month, the Council announced that the number of complaints received from residents over the odours from the landfill site were 338 in May, followed by 286 in June. Both were higher than the figures over the same period last year, taking the total number of complaints received by the Council this year to 3,524.
In response, the leader of the Council, Simon Tagg, has called for a public enquiry over the Environment Agency’s (“EA”) conduct.
Earlier this year, we reported that the Council intended to seek legal action against the Quarry for the company’s alleged failure to comply with a court-granted Abatement Notice, which required the operator to control the odour nuisance from the site. In respect of this potential challenge, the terms of the Abatement Notice requires that permission to proceed must be granted from the Secretary of State for the Department of Environment, Food and Rural Affairs. Simon Tagg has also announced that he has urged the new Secretary of State to approve the challenge as a matter of priority.
In the meantime, the Council has organised a member-led committee of inquiry taking place over two days to look into the continuing effects of odour and look at generating next steps for improvements. Community groups, the EA, local councils, the Newcastle MP and the company operating Walleys Quarry have all been invited to attend. The first hearing date took place earlier this week on 23 July, with the second date set on 14 August.
